On Wednesday, March 7, 2018, the United States Court of Appeals for the Sixth Circuit ruled that Title VII of the Civil Rights Act of 1964 explicitly prohibits employment discrimination against transgender persons. The court also ruled that the Religious Freedom Restoration Act (“RFRA”) may not be used as a shield to justify discrimination against LGBTQ employees. In its decision, the court rejected the legal theory, rooted in the Supreme Court’s Hobby Lobby decision, that businesses may fire or mistreat protected employees under the guise of religious liberty.
In EEOC, et. al v. R.G. & G.R. Harris Funeral Homes, Aimee Stephens, a transgender woman who worked as a funeral director, started her employment presenting as male, the sex she had been assigned at birth. In 2013, Stephens informed her supervisor, Thomas Rost, that she had been diagnosed with a gender identity disorder and intended to transition. In response to this disclosure, Rost promptly terminated her. Rost later testified that he terminated Stephens because “he was no longer going to represent himself as a man,” and because Rost believed that gender transition “violat[es] God’s commands” because “a person’s sex is an immutable God-given fit.”
The EEOC brought suit on Stephens’ behalf, alleging that the acts of the funeral home constituted unlawful sex discrimination under Title VII. The district court concluded that Stephens had suffered sex discrimination, not specifically because she was transgender, but because she was subjected to impermissible sex stereotypes. However, the district court then concluded that even though she had been subjected to sex discrimination, the funeral home had a right to terminate her under RFRA. The district court held that RFRA protected the company’s religious beliefs, even when those beliefs resulted in otherwise unlawful sex discrimination.
In her unanimous opinion for the Court of Appeals, Judge Karen Nelson Moore rejected the analysis of the district court regarding both the reach of Title VII in providing protection for transgender persons and the availability of RFRA as a shield behind which an employer is free to engage in otherwise unlawful conduct. The Court found, “an employer cannot discriminate on the basis of transgender status without imposing its stereotypical notions of how sexual organs and gender identity ought to align.” It stated that discrimination against transgender persons is inherently sex based, in that “it is analytically impossible to fire an employee based on that employee’s status as a transgender person without being motivated, at least in part, by the employee’s sex.” Where an employer discriminates against an employee because of her “transgender or transitioning status,” that employer is necessarily taking sex into account—in violation of Title VII.
The Court rejected Harris Funeral Homes’ RFRA defense. For RFRA to serve as a shield for discriminatory conduct, RFRA requires a showing that there has been a “substantial burden” on “religious exercise,” that is not “in furtherance of a compelling government interest” and/or “the least restrictive means of furthering” that interest. In this case, the funeral home claimed that the presence of a transgender employee would (1) “often create distractions for the deceased’s loved ones” and (2) force Rost to leave the industry, because working with a transgender person was an infringement on his religious beliefs. The Court concluded that neither of these constituted substantial burdens on Rost or the funeral home.
